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27 posts from June 2020


Are (Most) Independent Agencies Unconstitutional after Seila Law v. CFPB?
Michael Ramsey

I think maybe they are.

On its face, the Supreme Court's ruling Monday in Seila Law LLC v. Consumer Financial Protection Bureau looks modest.  The Court (per Chief Justice Roberts, joined by Justices Thomas, Alito, Gorsuch and Kavanaugh) declined to extend the rule of Humphrey's Executor (approving multimember independent agencies) to agencies such as the CFPB that are headed by a single director.  That sounds a lot like the Chief Justice's opinion ten years ago in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 (2010) (declining to extend the rule of Humphrey's Executor to second-tier independent agencies).  So the longstanding independent agency structure (single tier, mulitmember) isn't threatened, but new structures giving more power and protection to agencies won't stand.

But a closer look suggests that Seila lays the groundwork for a larger attack on the agencies.  First, the opinion gives a strong endorsement to the unitary executive.  From the introduction:

Under our Constitution, the “executive Power”—all of it—is “vested in a President,” who must “take Care that the Laws be faithfully executed.” Art. II, §1, cl. 1; id., §3. Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance. Ten years ago, in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 (2010), we reiterated that, “as a general matter,” the Constitution gives the President “the authority to remove those who assist him in carrying out his duties,” id., at 513–514. “Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.” Id., at 514.

The President’s power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States, 272 U. S. 52 (1926).

And repeating this point later:

Article II provides that “[t]he executive Power shall be vested in a President,” who must “take Care that the Laws be faithfully executed.” Art. II, §1, cl. 1; id., §3. The entire “executive Power” belongs to the President alone. But because it would be “impossib[le]” for “one man” to perform all the great business of the State,” the Constitution assumes that lesser executive officers will “assist the supreme Magistrate in discharging the duties of his trust.” 30 Writings of George Washington 334 (J. Fitzpatrick ed. 1939).

These lesser officers must remain accountable to the President, whose authority they wield. As Madison explained, “[I]f any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” 1 Annals of Cong. 463 (1789). That power, in turn, generally includes the ability to remove executive officials, for it is “only the authority that can remove” such officials that they “must fear and, in the performance of [their] functions, obey.” Bowsher, 478 U. S., at 726 (internal quotation marks omitted).

And expanding on the political philosophy behind this structure:

The Executive Branch is a stark departure from [the Constitution's division of power]. The Framers viewed the legislative power as a special threat to individual liberty, so they divided that power to ensure that “differences of opinion” and the “jarrings of parties” would “promote deliberation and circumspection” and “check excesses in the majority.” See The Federalist No. 70, at 475 (A. Hamilton); see also id., No. 51, at 350. By contrast, the Framers thought it necessary to secure the authority of the Executive so that he could carry out his unique responsibilities. See id., No. 70, at 475–478. As Madison put it, while “the weight of the legislative authority requires that it should be . . . divided, the weakness of the executive may require, on the other hand, that it should be fortified.” Id., No. 51, at 350.

The Framers deemed an energetic executive essential to “the protection of the community against foreign attacks,” “the steady administration of the laws,” “the protection of property,” and “the security of liberty.” Id., No. 70, at 471. Accordingly, they chose not to bog the Executive down with the “habitual feebleness and dilatoriness” that comes with a “diversity of views and opinions.” Id., at 476. Instead, they gave the Executive the “[d]ecision, activity, secrecy, and dispatch” that “characterise the proceedings of one man.” Id., at 472.

To justify and check that authority—unique in our constitutional structure—the Framers made the President the most democratic and politically accountable official in Government. Only the President (along with the Vice President) is elected by the entire Nation. And the President’s
political accountability is enhanced by the solitary nature of the Executive Branch, which provides “a single object for the jealousy and watchfulness of the people.” Id., at 479. The President “cannot delegate ultimate responsibility or the active obligation to supervise that goes with it,” because Article II “makes a single President responsible for the actions of the Executive Branch.” [Free Enterprise Fund, at 496–497]...

The resulting constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials will still wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President. Through the President’s oversight, “the chain of dependence [is] preserved,” so that “the lowest officers, the middle grade, and the highest” all “depend, as they ought, on the President, and the President on the community.” 1 Annals of Cong. 499 (J. Madison).

Second, the opinion reads the exceptions to the unitary structure -- Humphrey's Executor and Morrison v. Olson -- very narrowly.  As to Humphrey's Executor:

[T]he contours of the Humphrey’s Executor exception depend upon the characteristics of the agency before the Court. Rightly or wrongly, the Court viewed the FTC (as it existed in 1935) as exercising “no part of the executive power.” [Humphrey's], at 628. Instead, it was “an administrative body” that performed “specified duties as a legislative or as a judicial aid.” Ibid. It acted “as a legislative agency” in “making investigations and reports” to Congress and “as an agency of the judiciary” in making  recommendations to courts as a master in chancery. Ibid. “To the extent that [the FTC] exercise[d] any executive function[,] as distinguished from executive power in the constitutional sense,” it did so only in the discharge of its “quasi-legislative or quasi-judicial powers.” Ibid. (emphasis added).

This paragraph is a very big deal, because it describes Humphrey's Executor in a way that doesn't cover most modern independent agencies (including, as Justice Thomas points out wryly in his separate opinion, the modern FTC itself).  Thomas' separate opinion (joined by Justice Gorsuch) calls for overruling Humphrey's Executor, but if you describe Humphrey's Executor as the Court does in this paragraph, you don't need to overrule it because it largely lacks force.  I assume that's why Justice Kavanaugh didn't join Thomas' opinion.

And in addition:

We have recognized a second exception for inferior officers [emphasis in the original] in two cases, United States v. Perkins and Morrison v. Olson...

Morrison describes the independent counsel's status as a subordinate officer as one factor in concluding that the removal provision didn't unduly limit the President's power.  But I wouldn't have said (until now) that subordinate status was essential to the outcome.

Thus, this key summary:

These two exceptions—one for multimember expert agencies that do not wield substantial executive power, and one for inferior officers with limited duties and no policymaking or administrative authority—“represent what up to now have been the outermost constitutional limits of permissible congressional restrictions on the President’s removal power.” PHH, 881 F. 3d, at 196 (Kavanaugh, J., dissenting).

I would think there are quite a few agencies that don't fit either of these exceptions -- that is, their members "wield substantial executive power" and are not "inferior officers with ... no policymaking authority."  True, these are typically multimember agencies.  But the quote above doesn't say that the Humphrey's Executor exception applies to multimember agencies.  It says the Humphrey's Executor exception applies to multimember agencies that do not wield substantial executive power.

It's also true that the opinion hedges -- it repeats several times that the CFPB structure is a "historical anomaly," or very nearly so.  For example:

“Perhaps the most telling indication of [a] severe constitutional problem” with an executive entity “is [a] lack of historical precedent” to support it. [Free Enterprise Fund], at 505. An agency with a structure like that of the CFPB is almost wholly unprecedented.

And later:

With the exception of the one-year blip for the Comptroller of the Currency, these isolated examples [raised by respondent and the dissent] are modern and contested. And they do not involve regulatory or enforcement authority remotely comparable to that exercised by the CFPB. The CFPB’s single-Director structure is an innovation with no foothold in history or tradition.

The opinion also emphasizes the single-director structure, which concentrates power in a way that multimember agencies do not:

The CFPB’s single-Director structure contravenes [the Framers'] carefully calibrated system by vesting significant governmental power in the hands of a single individual accountable to no one. The Director is neither elected by the people nor meaningfully controlled (through the threat of removal) by someone who is. The Director does not even depend on Congress for annual appropriations. See The Federalist No. 58, at 394 (J. Madison) (describing the “power over the purse” as the “most compleat and effectual weapon” in representing the interests of the people). Yet the Director may unilaterally, without meaningful supervision, issue final regulations, oversee adjudications, set enforcement priorities, initiate prosecutions, and determine what penalties to impose on private parties. With no colleagues to persuade, and no boss or electorate looking over her shoulder, the Director may dictate and enforce policy for a vital segment of the economy affecting millions of Americans.

So most existing mulitmember agencies can argue that unlike the CFPB (a) their structure isn't novel (at least, since the 1930s) and (b) they don't have the concentration of power problem.

But if the Court is serious about (a) reading Humphrey's Executor and Morrison narrowly in the way the opinion describes them and (b) upholding the unitary executive except as compelled by Humphrey's Executor and Morrison, independent agencies should be worried.  I think that's the right originalist outcome.


Neal Goldfarb: The Use of Corpus Linguistics in Legal Interpretation
Michael Ramsey

Neal Goldfarb (Georgetown University Law Center) has  posted The Use of Corpus Linguistics in Legal Interpretation (2021 Annual Review of Linguistics. Vol. 7, forthcoming) (30 pages) on SSRN.  Here is the abstract:

Over the past decade, the idea of using corpus linguistics in legal interpretation has attracted interest on the part of judges, lawyers, and legal academics in the United States. This paper provides an introduction to this nascent movement, which is generally referred to as “Law and Corpus Linguistics” or “LCL”. After briefly summarizing LCL’s origin and development, we will situate LCL within legal interpretation, by discussing the legal concept of “ordinary meaning,” which establishes the framework within which LCL operates, and within linguistics, by identifying the subfields that are most relevant to LCL. We will then offer a linguistic justification for an idea that is implicit in the case law and that provides important support for using corpus analysis in legal interpretation: that data about patterns of usage provides evidence of how words and other expressions are ordinarily understood. We go on to discuss linguistic issues arising from the use of corpus linguistics in dealing with disputes involving lexical ambiguity and categorization. The paper concludes by pointing out some challenges that the growth of LCL will present for both legal professionals and linguists.

RELATED:  At LAWnLinguistics, Neal Goldfarb: Comments on two responses to my (mostly corpus-based) analysis of the Second Amendment. Part 1: Gun-rights advocates’ amicus brief (responding to this professors' amicus in Young v. Hawaii [9th Circuit]).


Habeas Corpus Originalism in DHS v. Thuraissigiam
Michael Ramsey

In Department of Homeland Security v. Thuraissigiam, decided Thursday, the Supreme Court (Per Justice Alito, writing for himself, Roberts, Thomas, Gorsuch and Kavanaugh) held that the writ of habeas corpus didn't protect Mr. Thuraissigiam, who sought to challenge DHS's rejection of his asylum claim.  Josh Blackman comments here

The majority required the Thuraissigiam to identify a specific case that supports his claim for relief. A close analogy is not enough.

Despite pages of rhetoric, the dissent is unable to cite a single pre-1789 habeas case in which a court ordered relief that was anything like what respondent seeks here. The dissent instead contends that "the Suspension Clause inquiry does not require a close (much less precise) factual match with historical habeas precedent," and then discusses cases that are not even close to this one.

In dissent, Justice Sotomayor writes that Boumediene does not require such a close historical fit:

But as the Court implicitly acknowledges, its inquiry is impossible. The inquiry also runs headlong into precedent, which has never demanded the kind of precise factual match with pre-1789 case law that today's Court demands.

At Dorf on Law, Michael Dorf is critical of Justice Alito's originalism: Justice Alito's Opinion in Dep't of Homeland Security v. Thuraissigiam Reveals Why "Custody" in the Narrow Sense Should Not Be a Requirement for Habeas.  From the core of the argument:

Much of the disagreement between Justices Alito and Sotomayor looks like a debate over "clearly established law" for purposes of overcoming qualified immunity or the characterization of a "new rule" for purposes of unavailability in the context of habeas as a collateral remedy for state prisoners. Justice Alito says that Thuraissigiam's lawyers failed to produce any cases from the relevant period that are sufficiently like his to serve as precedent; Justice Sotomayor responds that an exactly analogous case is unnecessary. I agree with Justice Sotomayor on this point, but that's not just because I take a broader view of precedent than the Court does in those other contexts too. It's also because Justice Alito's argument should fail on its own premises. Originalism--its champions have been telling us for a quarter century or more now--seeks the original public meaning of the constitutional text. The absence of an exactly analogous or even somewhat analogous case might have some bearing on the expectations or intentions of the framing generation, although then again it might not, but it certainly would not limit the application of the constitutional text to new or even unanticipated circumstances. Here as in many other contexts, originalists talk the original-public-meaning talk when defending originalism against theoretical critique but walk the concrete-intentions-and-expectations walk when it comes time to decide cases.
I agree that there shouldn't be a requirement of an exactly analogous case, for the reasons Professor Dorf says.  But Professor Dorf (per the title of his post) wants to say that "'Custody' in the Narrow Sense Should Not Be a Requirement for Habeas." So it seems to me that the burden is on him (and thus the claimant) to show that there is some historical foundation for the habeas writ applying beyond "custody in the narrow sense."  And I think Justice Alito's claim is that there is no pre-1789 evidence of habeas applying beyond "custody n the narrow sense."  Assuming Justice Alito is right on this point (and Professor Dorf provides no reason to think otherwise), then Justice Alito's originalism seems methodologically right to me.  It's correct that "[o]riginalism ... seeks the original public meaning of the constitutional text." But the constitutional text here is "the writ of habeas corpus." And if the "writ of habeas corpus" was never applied except to challenge wrongful custody, that seems pretty decisive to me that  "the original meaning of the constitutional test" is that "the writ of habeas corpus" is a procedure to challenge wrongful custody and nothing else (as Justice Alito says).  I see no originalist methodology problem here.


Jack Balkin: The Great Debate in the Conservative Legal Movement
Michael Ramsey

At Balkinization, Jack Balkin: The Great Debate in the Conservative Legal Movement.  From the introduction:

There is a great ferment among conservative legal intellectuals these days. This post is summary of what I think is happening, written from the perspective of an outsider. Although I am an originalist, I am also a political liberal. But I have many friends in the conservative legal movement and because of my scholarly agenda, I watch developments in the movement with great interest.

Since the second half of the 20th century, American conservatism has been a fusion of different approaches, including libertarians, small government conservatives, business interests, national security hawks, social conservatives, religious conservatives and paleo-conservative or "Old Right" nationalists who tended to be anti-immigration and isolationist. People often fell into multiple camps, and their ideas sometimes shifted over time.

The conservative legal movement arose of of this fusion. Together and separately, these various groups in the conservative constellation sought and pushed for a jurisprudence that would promote their values and show why their political opponents' legal views were incorrect. This is hardly surprising. Every jurisprudential movement that I can think of has been associated with a politics. And the very idea of a conservative legal movement should be a tip-off that the goal of the movement was to promote... well, conservatism.

By the 1980s or so, originalism had become the lingua franca of the conservative legal movement, with textualism (especially in statutory construction) following shortly thereafter. One didn't have to be either an originalist or a textualist to be a conservative legal intellectual, but the language of originalism and textualism was a convenient shorthand to describe what conservatives were for (and, equally important, what they opposed). Over the years, conservative judges and legal intellectuals developed jurisprudential theories designed to promote and apply both originalism and textualism.


Each part of the conservative movement, in other words, saw something to gain from originalism and textualism. The logic of originalism and the logic of the different forms of conservatism (more or less) converged.

Several things happened in the past twenty years that have upset those assumptions and created tensions within the conservative legal movement. Today's intellectual ferment is the result of those changes. ...


Jennifer Mascott: Early Customs Laws and Delegation
Michael Ramsey

Jennifer Mascott (George Mason University - Antonin Scalia Law School, Faculty) has posted Early Customs Laws and Delegation (George Washington Law Review, Vol. 87, No. 6, 2020) (64 pages) on SSRN. Here is the abstract:

This past Term the Supreme Court reexamined the nondelegation doctrine, with several justices concluding that in the proper case, the Court should consider significantly strengthening the doctrine in its contemporary form. Adherents to the doctrine question whether Congress has developed a practice of improperly delegating to administrative agencies the legislative power that Congress alone must exercise under the Vesting Clause of Article I of the Constitution. Many scholars have debated the extent of the historical or textual basis for the doctrine. Instead, this Article examines interactions between executive and legislative actors during the first congressional debates on the Impost, Tonnage, Registration, and Collection of Duties Acts. In addition to revealing Congress’s central role early on, this story shows the relevance of state and congressional district interests to the legislative agreements concerning customs laws. The rich depth of these varied interests suggests that nondelegation limitations might not be inherent in the Vesting Clause alone, but may be innate to the federal government’s tripartite and federalist structural design itself.

The Constitution carefully provided significant protection for state interests through diverse representation schemes in the House and the Senate. Beyond the textual limitation of exclusive vesting of the legislative power in Congress, separation of powers principles help ensure all people’s interests are represented in a way that would not be possible via a singular, centralized administrative entity. The acts of such administrative entities are accountable, if at all, to just one centralized elected official, not to multiple elected decisionmakers representing states and regional interests. Consequently, enforcement of relatively strict nondelegation principles may be critical to preserving the structural constitutional principle that the federal government must reflect the interests of both individual members of the electorate as well as the states and regional electoral districts.


Zachary Price: Congressional Authority Over Military Offices
Michael Ramsey

Zachary Price (University of California Hastings College of the Law) has posted Congressional Authority Over Military Offices (Texas Law Review, forthcoming) (71 pages) on SSRN.  Here is the abstract:

While scholars have explored at length the constitutional law of office-holding with respect to civil and administrative offices, recent scholarship has largely neglected parallel questions regarding military office-holding. Even scholars who defend broad congressional authority to structure civil administration typically presume that the President as Commander in Chief holds greater authority over the military. For its part, the executive branch has claimed plenary authority over assignment of military duties and control of military officers.

This pro-presidential consensus is mistaken. Although the President, as Commander in Chief, must have some form of directive authority over U.S. military forces in the field, the constitutional text and structure, read in light of longstanding historical practice, give Congress extensive power to structure offices, chains of command, and disciplinary mechanisms through which the President’s authority is exercised. In particular, just as in the administrative context, Congress may vest particular authorities—authority to launch nuclear weapons or a cyber operation, for example, or command over particular units—in particular statutorily created offices. In addition, although the Constitution affords Presidents removal authority as a default disciplinary mechanism, Congress may supplant and limit this authority by replacing it with alternative disciplinary mechanisms, such as criminal penalties for disobeying lawful orders.

By defining duties, command relationships, and disciplinary mechanisms in this way, Congress may establish structures of executive branch accountability that promote key values, protect military professionalism, and even encourage or discourage particular results, all without infringing upon the President’s ultimate authority to direct the nation’s armed forces. These conclusions are relevant pending Supreme Court cases regarding military discipline and presidential removal authority. They also bear directly on pending legislative proposals to vest authority over cyber weapons, force withdrawals, or nuclear weapons in officers other than the President. From a broader perspective, they shed new light on separation-of-powers debates over the “unitary” executive branch, conventions of governmental behavior, the civil service’s constitutionality, and Reconstruction’s historical importance.


Further Programming Note
Michael Ramsey

I'm back.  All's well.  I will resume posting tomorrow morning.


Programming Note
Michael Ramsey

I will be taking a brief hiatus from blogging for personal reasons starting tomorrow.  I hope to return shortly.

John Stinneford: Is Solitary Confinement a Punishment?
Michael Ramsey

John F. Stinneford (University of Florida Levin College of Law) has posted Is Solitary Confinement a Punishment? (Northwestern University Law Review, Vol. 115, 2020) (29 pages) on SSRN.  Here is abstract: 

Nulla poena sine lege — no punishment without law — is one of the oldest and most universally accepted principles of English and American law. Today, thousands of American prisoners are placed in long-term solitary confinement despite the fact that such placement is authorized neither by penal statute nor by judicial sentence. Is solitary confinement “punishment without law,” or is it a mere exercise of administrative discretion?

In 1890, in a case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this holding in recent decades. Part I of the Essay that follows describes the Supreme Court’s existing case law governing prison officials’ discretion to impose harsher conditions on inmates. Part II analyzes English and American constitutional history relating to the need to limit discretion over punishment, the danger of executive discretion in the infliction of punishment, and the distillation of a standard relevant to determining whether a given government action is a punishment. Finally, Part III checks the accuracy of the Supreme Court’s conclusion in Medley that the harshness of solitary confinement makes it a new punishment by examining historical and modern empirical data relating to the effects of solitary confinement, and concludes that the Medley court was correct.

(Via Larry Solum at Legal Theory Blog, who says: "Highly recommended.")


Textualism in the Bostock v. Clayton County Decision: Two Views
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Textualism and Purposivism in Today's Supreme Court Decision on Discrimination Against Gays, Lesbians, and Transsexuals.  From the introduction:

[The] Supreme Court decision holding that Title VII of the Civil Rights Act of 1964 forbids employment discrimination against gays, lesbians, and transsexuals is well-justified on the basis of textualism—a theory of legal interpretation usually associated with conservatives. By contrast, it is less clearly right from the standpoint of purposivism, more often associated with liberals, such as Supreme Court Justice Stephen Breyer. The Court's opinion in Bostock v. Clayton County was written by Justice Neil Gorsuch, a conservative known for his adherence to  textualism and joined by four liberal justices, as well as the conservative Chief Justice John Roberts. Three conservative justices dissented.

The relevant text of Title VII states that it is "unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."

Justice Gorsuch's majority opinion effectively explains why discrimination on the basis of sexual orientation qualifies as discrimination "because of…sex" under the plain text of the law:

From the ordinary public meaning of the statute's language at the time of the law's adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn't matter if other factors besides the plaintiff 's sex contributed to the decision. And it doesn't matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee—put differently, if changing the employee's sex would have yielded a different choice by the employer—a statutory violation has occurred.

The statute's message for our cases is equally simple and momentous: An individual's homosexuality or transgender status is not relevant to employment decisions. That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague….

At NRO Bench Memos, Ed Whelan: A ‘Pirate Ship’ Sailing under a ‘Textualist Flag’.  From the introduction:

In his dissent [in Bostock], Alito memorably likens Gorsuch’s majority opinion to a “pirate ship”:

It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.

As someone who had much higher expectations for Gorsuch (and for the Chief Justice), I’m sorry to say that I completely agree with Alito. In this post, I will highlight some of the reasons why. Let me first acknowledge, though, that I do not view the path to the correct statutory answer as a simple one. It requires care to avoid some pitfalls.

1. Gorsuch’s majority opinion “proceed[s] on the assumption that ‘sex’ … refer[s] only to biological distinctions between male and female” (Majority at 5), but contends that “homosexuality and transgender status are inextricably bound up with sex”: “to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” By his account, if an employer is okay that a female employee is attracted to men, that employer is discriminating on the basis of sex if he penalizes a male employee for being attracted to men. Ditto if the employer retains a self-identifying female “who was identified as female at birth” but fires a person who now identifies as female “who was identified as a male at birth.” (Majority at 10-11.)

As a technical matter, Alito points out that it is indeed “quite possible for an employer to discriminate on those grounds [i.e., sexual orientation or gender identity] without taking the sex of an individual applicant or employee into account”—e.g., through a blanket policy against hiring gays, lesbian, or transgender individuals. Indeed, he observes, employees’ counsel conceded the point at oral argument. (Dissent at 8-9.)